The
Ninth U.S. Circuit Court of Appeals, over a dissent by five of its judges,
Wednesday denied en banc review of a ruling that requires immigration
authorities to release a mentally ill alien from their custody.

A
three-judge panel ruled in May that Tuan Thai, a native of Vietnam who was
ordered deported after several convictions for violent crimes, cannot remain in
detention because there is no foreseeable possibility of his actually being
removed from the United States.

Thai
came to the United States
in 1996 and was granted permanent resident status under the Amerasian
Immigration Act. The act permits a person born in Korea,
Vietnam,
Laos,
Cambodia
or Thailand
between 1951 and 1982 to petition for such status upon a showing that his or
her father was a U.S.
citizen, along with the securing of a sponsor.

After
serving prison time for assault, harassment, and rape, Thai was taken into
government custody pending removal. An immigration judge found that Thai was
removable as an aggravated felon, and the removal order became final in 2002.

The
government has asked Vietnam
to issue travel documents for Thai’s return to his native country. But the
Vietnamese, who have no repatriation agreement with the United
States, have not responded and
the government does not contend that his removal is reasonably foreseeable.

Supreme
Court Ruling

In
December 2002, Thai petitioned for habeas corpus relief under Zadvydas v. Davis, 533 U.S. 678 (2001),
which held that the authority to hold an alien past the normal removal period
if he or she is dangerous to the community does not permit indefinite detention
of an alien whose removal is not reasonably foreseeable.

In
Thai’s case, the government argued that Thai’s history of mental illness made
him dangerous to the community and constituted a special circumstance
permitting continued detention, even under Zadvydas.
U.S. District Judge Thomas S. Zilly of the Western District of Washington
disagreed and granted the petition.

Judge
Richard Clifton, writing for the Ninth Circuit on May 3, agreed with the
district judge.

“The
statement in Zadvydas that
noncriminal detention by the Government is permissible only in narrow
nonpunitive circumstances was intended to illustrate what the Government is
generally prohibited from doing,
and what it may in some circumstances be permitted to do,” Clifton explained,
but does not establish an exception to the limitation on detention.

Statute
Construed

Clifton
noted that the Supreme Court found in Zadvydas
that 8 U.S.C. Sec. 1231(a)(6), the statute permitting continued detention of
dangerous aliens, would be of questionable constitutionality if it were
construed as allowing such detention to be limitless.

Language
in Zadvydas suggesting that a
broader construction of the government’s authority might be warranted when
dealing with “terrorism or other special circumstances,” Clifton
went on to say, cannot be applied in Thai’s case. “A careful reading of Zadvydas reveals that the Court’s mention
of heightened deference in situations of ‘terrorism or other special
circumstances’ was strictly limited to the context of ‘matters of national
security,.’ ” the judge wrote.

The
court reported yesterday that the panel opposed en banc review, and that a
majority of the active judges did not vote to take the case en banc.

Judge
Alex Kozinski, joined by Judges Richard Tallman, Jay Bybee, Consuelo Callahan,
and Carlos Bea, argued that the case was “of exceptional importance” and should
have been reconsidered.

“In
rejecting the Attorney General’s sincere effort to bring 8 U.S.C. §1231(a)(6)
into compliance with Zadvydas v. Davis,
533 U.S. 678 (2001), the panel seriously undermines the power of the executive
branch as to immigration, an area within its peculiar authority,” Kozinski
wrote. “In so doing, the panel releases into the population of our circuit an
individual who has been found, by clear and convincing evidence, to be mentally
disturbed and dangerous. We should not let this happen.”

‘Peculiar
Risks’

The
judge explained that under post-Zadvydas
regulations, a detained alien whose removal is unforeseeable will be released
from custody after six months unless they pose, as Kozinski put it, “peculiar
risks to the public or security of the United
States.”

One
category of such risks, the judge noted, consists of aliens who have committed
crimes of violence and are likely to do so again due to a mental condition or
personality disorder, and who cannot be rendered harmless through conditions of
release.

The
regulations require a full evaluation by the Public Health Service, a written
determination by an immigration official that the alien meets the conditions
for continued detention, and a probable cause hearing before an immigration judge.
If the IJ finds probable cause, the immigrant is bound over for a merits
hearing at which the government must prove dangerousness by clear and
convincing evidence.

The
panel, Kozinski argued, should have upheld the regulations and overturned the
district judge’s order. The regulations are not inconsistent with the statute
as interpreted by the Supreme Court, he wrote, because Zadvydas is limited to the situation that
was before the high court—one in which aliens were threatened with continued
detention even though there was neither a reasonable possibility of removal nor
proof of dangerousness to the community.

Kozinski
went on to write:

“There
can be no doubt that, had the regulations been promulgated before Zadvydas, they would have been
upheld. In adopting the regulations, the AG drew upon a broad grant of
regulatory authority, and the statute itself—as written by Congress—clearly
authorizes detention of aliens beyond six months. Because the regulations
obviate the constitutional doubts expressed in Zadvydas,
the reasons given by the Court in that opinion would not have provided a basis
for striking down the regulations. There is no legitimate reason the result
should be different just because the AG promulgated the regulations after Zadvydas.”